OF DEEDS OF SUCCESSION. II. OF THE TRANSMISSION OF RIGHTS TO HEIRS, AND DEEDS mortis caufa. IN N the two preceding Volumes, I have presented to the reader those Deeds by which rights inter vivos are conftituted, transmitted, or discharged: and in the order of the plan laid down in the firft volume of the third edition of this Work, I am now to give Examples of Deeds for transmitting Rights to Heirs, and of Deeds mortis caufa. This is an exceedingly interefting subject; and the arrangement I have taken proceeds on that principle on which my whole plan rests; which gradually leads from the fimpler to the more complex forms; while, at the fame time, it follows the course of practice, and presents our Deeds in the order in which they appear in real bufinefs, and ferves fo well to explain their nature and use. In confidering the Deeds of the prefent title, the first thing that prefents itself is the "difference in those forms by which heritable and moveable property were originally conveyed to an heir. In heritage, we have never reforted to the nomination of an heir, as the means of conveying landed property. from the dead to the living: Such a nomination, being inconfiftent with feudal forms, would have no effect. Lands are given by a fuperior to his vaffal and to his heirs, to be held by them in the manner, and under the conditions directed by the grant. When a fale is made, it is made to the purchaser, to be held of the feller, or of the feller's fuperior: And although the feudal fyftem fell with wardholding, yet, in all fituations, we find the heritable right preferve the forms of that law, and every grant or tranfmiffion of an estate requires a fuperior and vaffal. Even when a proprietor conveys to an heir, different from the heir of inveftiture, he makes this new heir hold of himself or of his fuperior. In fhort, our feudal forms acknowledge no other manner of conveying land, than by creating a new right in favour of a new vaffal. Such has been the effect of feudal ideas, under the in fluence of which, the deeds, by which heritage is conveyed to an heir, are still framed. A Moveable property may, on the other hand, be confidered as governed by civil-law notions, both in regard to fucceffion and the forms by which the right to an heir is established. perfon may name an executor, or univerfal intromitter with his moveables, either for the behoof of the perfon named, which renders him abfolute proprietor of the fucceffion; or for the purpose of diftributing the effects amongst the nearest of kin, or those to whom it is destined by the teftator. In this, there is nothing more than the naming of an heir or legatory: There is no conveyance of the moveable property; no term of donation by which a right is directly conftituted in the effects falling under the teftament: That active title is conferred, not by the appointment of an executor, but by the decree of the Judge, pronounced in the confirmation of the teftament. This original difference, in the form of conveying heritable and moveable property, long remained. The former was carried by a conveyance inter vivos; the latter by a teftament, or nomination of an heir, to take effect after the death of the teftator. The testament was indeed the only form by which moveables were given to an heir previous to the 1690; because at that time an affignation, not intimated during the lifetime of the grantor (and a conveyance for a teftamentary purpose must have remained unintimated), would have carried no right to the difponee: It would have been confidered as a device to defeat the intereft of the Commiffaries, and would have received no effect. The act of that year (1690, c. 26.) rendered a specific conveyance of moveables effectual, and made it fuperfede the neceffity of confirmation. From that time, in place of a mere teftament, by which an executor was named, whofe intereft in the funds required the aid of confirmation, the right was given to a difponee, vefting the moveable eftate in him, by exprefs words of conveyance, which gave him a right to the subjects defcribed, and required no intimation during the lifetime of the grantor, nor confirmation by the Commiffaries after his death; but, according to the plain meaning of the words, gave the difponee, on the death of the grantor, a right to the fubjects conveyed. This change in the law made a very confiderable change on the practice. The latterwill and testament, which before was abfolute |